Littlewood v Radford & Anor (Formerly T/a Boston Carrington Pritchard)

A professional retainer does not automatically end because the work is described as proceeding in stages or because one stage is complete. Its duration and scope depend on the parties’ instructions and subsequent conduct. An implied duty may require a professional adviser to remind an inexperienced client of an approaching procedural deadline where the retainer remains on foot and the client may reasonably rely on the adviser. There is no general rule requiring clear advice to be repeated. In the particular circumstances, the continuing retainer included a duty to remind the client to apply to the Leasehold Valuation Tribunal before the statutory deadline.

The appellant owned a short lease of a London flat and retained the respondent surveyors to assist with obtaining an extended lease. She served a statutory notice and the Crown Estate Commissioners served a counter-notice, but no application to the Leasehold Valuation Tribunal was made by the statutory deadline. The notice was consequently deemed withdrawn, and she later obtained an extension outside the statutory scheme at a higher premium.

She sued for professional negligence, alleging failure to make, or advise her to make, the tribunal application. The Central London County Court dismissed the claim, finding that the retainer ended on 5 June 2000 and that the deadline had been explained. The appeal concerned whether the retainer continued and, if so, whether the adviser had to remind her as the deadline approached.

1. Appeal allowed. Rimer LJ held that the trial judge’s finding that the retainer terminated on 5 June 2000 was contrary to the evidence. Hughes LJ and Waller LJ agreed. The order dismissing the claim was set aside, and judgment was ordered for the appellant on her claim for damages in terms to be agreed.
2. A judge may find a termination date different from those advanced by the parties if the evidence supports it. Ordinarily, the parties should be told of the proposed conclusion and given an opportunity to address it. Here, however, there was no evidential basis for selecting 5 June as the termination date.
3. The staged structure of the professional work, and the clients’ wish to limit costs, did not establish that each stage created a separate retainer. After 5 June, the instructions remained to await the landlord’s valuer’s figure and negotiate the premium. The adviser’s letter of 1 August recognised that he was still acting. The unchallenged finding that non-payment of the invoice did not terminate the retainer meant that it remained in existence on 8 November.
4. There is no general principle that a professional adviser must repeatedly give advice which has already been clearly given. Nevertheless, in the particular circumstances, the continuing retainer imposed an implied duty to remind an inexperienced client, as the deadline approached, of the need to apply to the Leasehold Valuation Tribunal to preserve the claim. The client was entitled to rely on the professional adviser to identify and remind her of the necessary procedural step. Rimer LJ regarded the observations in R.P. Howard Ltd & Richard Alan Witchell v. Woodman Matthews & Co (a firm) [1983] BCLC 117 as supporting that conclusion.
5. The statutory consequence was that failure to apply within the prescribed period caused the statutory notice to be deemed withdrawn. The trial judge’s alternative assessment of damages was not challenged.

1. Court of Appeal (Civil Division): allowed the appeal and set aside the order dismissing the professional-negligence claim: [2009] EWCA Civ 1024.
2. Central London County Court: dismissed the claim by order dated 20 October 2008, finding that the retainer had terminated before the deadline.